occasions, Sietas met with Tecomar, the Mexican corporation
that owned the Tuxpan, in Houston, Texas. The purpose of these
meetings is not stated. Sietas sent two employees to Houston
in February, 1983 to inspect and perform repairs on the
Tuxpan. According to telex messages plaintiffs have submitted
as evidence of the repairs performed in Houston, the items to
be repaired were cargo cranes on the Tuxpan's deck. The
technical director of Tecomar stated in a deposition that in
1984 the chief of Sietas's engineering department came to
Galveston, Texas to change the propeller of another ship.
In 1987, Tecomar brought a proceeding in this district for
limitation of liability arising out of the loss of the Tuxpan.
Plaintiffs were parties to the limitation of liability action.
Defendants were not. According to plaintiffs' counsel,
"extensive substantive evidence was obtained and developed
which is relevant to the defendants' liability in the present
action." This evidence includes publications, pamphlets,
drawings, contracts, specifications, surveys, and
correspondence pertaining to the design, construction, and
classification of the Tuxpan.
I. Personal Jurisdiction
Plaintiffs bear the burden of establishing the court's
personal jurisdiction over defendants. CutCo Industries, Inc.
v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986); Alexander &
Alexander v. Donald F. Muldoon & Co., 685 F. Supp. 346, 351-352
(S.D.N.Y. 1988). Because this issue is decided initially on the
pleadings and without discovery, plaintiffs need make only a
prima facie showing of jurisdiction. Volkswagenwerk
Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120
(2d Cir. 1984). All pleadings and affidavits must be construed
in the light most favorable to plaintiffs and all doubts
resolved in their favor. Hoffritz for Cutlery, Inc. v. Amajac,
Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Alexander &
Alexander, 685 F. Supp. at 352.
In Omni Capital Int'l v. Rudolf Wolff & Co., the Supreme
Court held, in a case arising under a federal statute which did
not provide for service of process on a party not an inhabitant
of or found within the forum state, that under Fed.R.Civ.P.
4(e), the forum state's long-arm statutes control amenability
to suit in the federal courts. 484 U.S. 97, 108 S.Ct. 404, 98
L.Ed.2d 415 (1987). Although this is a suit in admiralty, and
not a federal question action, the same principle applies.
Therefore, in the absence of a federal statute authorizing
service of process beyond the state, I must look to the New
York long-arm statutes to determine whether I can exercise
personal jurisdiction over Krupp and Sietas. Fed.R.Civ.P. 4(e).
See also Daval Steel Products v. M.V. Juraj Dalmatinac,
718 F. Supp. 159 (S.D.N.Y. 1989).
Plaintiffs argue that personal jurisdiction exists over
Krupp and Sietas because they are "doing business" in New York
under New York Civil Practice Law and Rules ("CPLR") § 301 and
because they transacted business in New York within the meaning
of CPLR § 302(a)(1). I will treat these arguments in turn.
CPLR § 301
In order to be subject to personal jurisdiction under CPLR
§ 301, a non-resident defendant must be "engaged in such a
continuous and systematic course of `doing business' [in New
York] as to warrant a finding of its `presence' in this
jurisdiction." Frummer v. Hilton Hotels International, Inc.,
19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851, 853 cert.
denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). A
foreign corporation may also be subject to jurisdiction in New
York under § 301 when a separate corporation, acting with its
authority and for its substantial benefit, carries out
activities in New York that are more than "mere solicitation"
sufficiently important to the foreign corporation
that if it did not have a representative to
perform them, the corporation's own officials
would undertake to perform substantially similar
Gelfand v. Tanner Motor Tours, Ltd.,
(1968); Tuxxedo Network, Inc. v. Hughes Communications Carrier
Services, Inc., 753 F. Supp. 514, 517 (S.D.N.Y. 1990).
Plaintiffs argue that even if they have not shown that this
court has personal jurisdiction over Krupp and Sietas, they
have alleged enough to warrant further discovery on the issue
of personal jurisdiction. Discovery on the issue of personal
jurisdiction may be permitted in the court's discretion if
plaintiffs allege facts that would support a colorable claim
of jurisdiction. Daval Steel Products v. M.V. Juraj Dalmatinac,
718 F. Supp. at 162.
Plaintiffs argue that Krupp is doing business in New York
because it advertises in publications distributed in New York,
because of its contractual relationship with Golten Marine in
Brooklyn, and because of the activities of its Illinois and
Ontario subsidiaries. There is no evidence that suggests that
Krupp's contract with Golten Marine or Krupp's Illinois
subsidiary's activities have resulted in any contacts with New
York in the recent past or that further discovery would
produce evidence of such contacts. Moreover, plaintiffs have
not alleged a colorable claim that the activities of either
the Illinois or the Ontario subsidiary are attributable to
Krupp. See Volkswagenwerk, 751 F.2d at 120-122 (enumerating
factors to be considered in determining whether subsidiary's
activities may be attributed to parent for purpose of personal
jurisdiction). The only evidence plaintiffs have submitted of
contacts with New York attributable to Krupp is the fact that
Krupp advertises in publications distributed in New York.
However, solicitation of business alone will not justify a
finding of corporate presence in New York with respect to a
foreign manufacturer. Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449
N.Y.S.2d 456, 459, 434 N.E.2d 692, 695 (1982); Miller v. Surf
Properties, 4 N.Y.2d 475, 480, 176 N.Y.S.2d 318, 151 N.E.2d 874
Plaintiffs have failed to make a prima facie showing that
this court has personal jurisdiction over Krupp. Nor have
plaintiffs alleged facts from which it may be inferred that
further discovery would show that Krupp is doing business in
New York, especially in light of the extensive discovery that
has already been conducted in the limitation of liability
Plaintiffs have not alleged that Sietas has ever had any
contact with New York. Clearly, this court does not have
personal jurisdiction over Sietas.
CPLR § 302
As plaintiffs concede, CPLR § 302 by its terms allows a court
to exercise personal jurisdiction based on a foreign
defendant's contacts with New York only "as to a cause of
action arising from" those contacts. N.Y.Civ.Prac.L. & R. § 302
(McKinney 1990). Plaintiffs argue that further discovery is
required to determine whether Krupp's and Sietas's contacts
with New York are related to plaintiffs' claims. However,
plaintiffs' claims against Sietas and Krupp arise from the
construction of the Tuxpan and the manufacture of its engine,
which took place solely in Germany. Plaintiffs do not suggest
that the Tuxpan has ever been in New York for any purpose.
Plaintiffs have not made a colorable claim that Krupp and
Sietas are subject to personal jurisdiction in New York under
CPLR § 302.
A district court has the power to transfer a case to another
judicial district pursuant to 28 U.S.C. § 1404(a) and 1406(a)
whether or not the transferor court has personal jurisdiction
over the defendant. Corke v. Sameiet M.S. Song of Norway,
572 F.2d 77, 80 (2d Cir. 1978); Alexander & Alexander, 685 F. Supp.
at 348. Where the transferor court lacks personal jurisdiction
over a defendant, transfer is appropriate if it is in the
interest of justice. Corke v. Sameiet M.S. Song of Norway, 572
F.2d at 80.
An action may be transferred only to a district where it
might have been brought initially. 28 U.S.C. § 1404(a),
1406(a). Venue must be proper and the defendants must be
subject to personal jurisdiction in the transferee forum.
Alexander & Alexander, 685 F. Supp. at 349. The party seeking
transfer bears the burden of establishing personal jurisdiction
over the defendants in the transferee forum. Id. at 350.
As noted above, the personal jurisdiction of a federal
admiralty court is determined by the law of the state in which
the court sits. Accordingly, whether Krupp and Sietas are
subject to personal jurisdiction in Texas is determined by the
Texas long-arm statute. The only argument plaintiffs offer in
support of personal jurisdiction over Krupp and Sietas in
Texas is that the Texas long-arm statute has been interpreted
to extend to the constitutional due process limits established
by the Fourteenth Amendment. For this argument, plaintiffs
rely on Alexander & Alexander, 685 F. Supp. 346. See also Hall
v. Helicopteros Nacionales de Colombia, S.A. (Helicol),
638 S.W.2d 870 (Tex. 1982), rev'd on other grounds, 466 U.S. 408,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). However, as explained in
Alexander & Alexander, Texas courts address the applicability
of the Texas long-arm statute before considering whether the
exercise of personal jurisdiction comports with constitutional
due process requirements. Alexander & Alexander, 685
F. Supp. at 350; see also Runnels v. Firestone, 746 S.W.2d 845
(Tex. Ct. App. 14th Dist. 1988); Ross F. Meriwether &
Associates, Inc. v. Aulbach, 686 S.W.2d 730 (Tex. Ct. App. 4th
Dist. 1985). Plaintiffs have neglected to cite any provision of
the Texas long-arm statute under which a Texas court could
exercise personal jurisdiction over any of the defendants.
Moreover, plaintiffs have not alleged sufficient facts to
show that the exercise of personal jurisdiction over Krupp and
Sietas in Texas would comport with the constitutional
requirements of due process of law. Where a claim against a
foreign defendant does not arise out of the defendant's
contacts with the forum state, the exercise of personal
jurisdiction over the defendant will be consistent with due
process only if the defendant's contacts with the forum state
are "continuous and systematic." Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868,
1872-73, 80 L.Ed.2d 404 (1984). The only contact plaintiffs
allege that Krupp had with Texas is an unspecified agency
relationship with an unidentified company in Houston, which was
terminated in 1988, two years before these lawsuits were filed.
Krupp represents that its Illinois subsidiary has an agreement
with a company in LaPorte, Texas, which authorizes that company
to conduct service operations on Krupp products and to purchase
spare parts from the subsidiary at a discount. There is no
suggestion that the Texas company did any work on the Tuxpan's
engine. The few contacts alleged between Sietas and Texas are
that Sietas met in Houston with the Mexican owner of the Tuxpan
about unspecified matters, that Sietas employees travelled to
Texas to repair cargo cranes on the Tuxpan in 1983, and that a
Sietas employee repaired another ship in Texas in 1984. Because
Krupp's and Sietas's contacts with Texas are not "continuous
and systematic" and because there is no indication that they
are related to the claims asserted in these actions,*fn1 they
do not amount to "minimum contacts with [the forum] such that
the maintenance of the suit does not offend `traditional
notions of fair play and substantial justice.'" Id., at 414,
104 S.Ct. at 1872 (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95
Since plaintiffs have not shown that Krupp and Sietas are
subject to personal jurisdiction in Texas, plaintiffs' motion
to transfer the claims against those defendants to Texas is
III. Forum Non Conveniens
Since Sietas and Krupp are not subject to personal
jurisdiction in New York or Texas, it is unnecessary to
consider their forum non conveniens motions. The dismissal of
the claims against these defendants may affect plaintiffs'
desire to continue these actions against Germanischer in this
district and the parties' positions on Germanischer's motion to
dismiss on forum non conveniens grounds.
For the foregoing reasons, the motions of Krupp and Sietas
to dismiss the complaints for lack of personal jurisdiction
are granted. In my discretion, I deny plaintiffs' request for
further discovery regarding personal jurisdiction because
after extensive discovery in the limitation of liability
proceeding, plaintiffs have not alleged a colorable claim that
personal jurisdiction exists in either New York or Texas over
Krupp and Sietas. Plaintiffs' motion to transfer the claims
against these defendants to Texas is denied.